EXHIBIT H
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MIT - AMERITECH
AMENDED AND RESTATED
EXCEPTED HOLDER AGREEMENT
This AMENDED AND RESTATED EXCEPTED HOLDER AGREEMENT is made and entered
into as of September 30, 1997 by and between MERIDIAN INDUSTRIAL TRUST, INC., a
Maryland corporation (the "Company"), and STATE STREET BANK AND TRUST COMPANY,
not individually but solely as Trustee for Ameritech Pension Trust, and any
successor trustee therefor ("Ameritech").
R E C I T A L S
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A. To help the Company maintain its status as a real estate investment
trust ("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"),
the Company's Third Amended and Restated Articles of Incorporation (the
"Articles") impose certain limitations on the ownership of the Company's stock.
(Capitalized terms used in this Agreement that are not otherwise defined shall
have the meanings given to them in the Articles.) The Articles contain a
general restriction prohibiting any Person from owning more than a specified
percentage (initially set at eight and one half percent) of the lesser of the
number or value of any class of outstanding shares of the Company (the
"Ownership Limit").
B. The Company's Board of Directors is permitted to establish an
"Excepted Holder Limit" allowing ownership in excess of the Ownership Limit if
certain conditions are satisfied. This Agreement is intended to increase the
current Excepted Holder Limit for Ameritech.
C. On February 23, 1996, the Company and Ameritech entered into an
Excepted Holder Agreement. The Company and Ameritech each desire to amend and
restate the existing Excepted Holder Agreement in its entirety.
A G R E E M E N T
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1. REPRESENTATIONS AND COVENANTS OF AMERITECH
Beginning on February 23, 1996, and during any period that an Excepted
Holder Limit established pursuant to this Agreement (as subsequently adjusted)
remains in effect, Ameritech represents and agrees as follows:
1.1 Applying the stock ownership rules of Code Section 856(h),
a. the shares that Ameritech owns will be treated as owned by
Ameritech Pension Trust, which is a "qualified trust" that is and
will be treated as described in clause (i) of Code Section
856(h)(3)(A), and
b. No beneficiary of Ameritech will be considered to own (nor
any "individual," including individuals who are treated as owning
an interest through such beneficiary) an actuarial interest in
Ameritech of more than 0.5%.
1.2 Not later than October 31, 1997, Ameritech shall deliver to the
Company a written certification that to the best knowledge of
Ameritech based upon the due diligence described below, Ameritech does
not actually own or Constructively Own an interest in any tenant of
the Company (or any entity owned or controlled by the Company) listed
on Schedule 1 attached hereto that would cause the Company to
Constructively Own more than a 9.9 percent interest (within the
meaning of Section 856(d)(2)(B) of the Code) in such tenant, without
regard to the other interests in such tenant which the Company may
actually or Constructively Own. The due diligence referred to above
shall consist of a review by Ameritech of the most recently received
copies of all financial reports received from (i) each partnership in
which Ameritech directly or indirectly holds an equity interest; and
(ii) each corporation in which Ameritech owns directly or indirectly a
10 percent or greater equity interest. The foregoing certification
shall be made only with respect to the date of such certification and
shall not constitute a continuing representation or covenant with
respect to the matters described in this Section 1.2.
1.3 Ameritech will not own, actually, Beneficially, or Constructively
shares of the Company's Equity Stock that would violate the Excepted
Holder Limit established for Ameritech pursuant to this Agreement.
1.4 Ameritech agrees that any violation or attempted violation of
Section 1.1 or 1.3 of this Agreement or the provisions of the Board of
Directors' resolution implementing this Agreement (or other action
contrary to the ownership restrictions imposed under the Articles)
will automatically subject the shares that otherwise would result in
the violation to the treatment described in Sections 5.5 and 5.6 of
the Articles (the shares will be immediately transferred to a Trust,
or if the transfer to the Trust would be ineffective, the purported
Transfer will be void ab initio).
1.5 Ameritech will not intentionally take any action which is known
by the person taking such action to result in a breach of any
representation, warranty or covenant of Ameritech set forth in this
Agreement, or an Ameritech Ownership Event (as defined below).
1.6 In the event that Ameritech is unable to perform the undertaking
set forth in Section 1.2, the representations or covenants provided
for therein are breached in any respect or Ameritech owns, actually or
Constructively, an interest in a tenant of the Company (or a tenant of
any entity owned or controlled by the Company) which causes the
Company to own, actually or Constructively, an interest in such tenant
which is described in Section 856(d)(2)(B) of the Code and, as a
consequence, fail to satisfy any of the gross income requirements of
Section 856(c) of the Code because of income derived by the Company
from such tenant (an "Ameritech Ownership Event"), then:
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a. any party hereto who becomes aware of such breach or Ameritech
Ownership Event shall promptly notify the other party in writing of
such breach or Ameritech Ownership Event; and
b. the Company shall take all reasonably available actions with
respect to its assets and sources of gross receipts in order to
prevent the incurrence of any material tax liability by the Company,
to the extent that the Board of Directors of the Company determines
that such actions are in the best interests of the Company and its
stockholders and will not cause significant economic detriment to the
Company; and
c. in the event that, pursuant to the provisions set forth in
subsection 1.6(b), the Company is unable to resolve the circumstance
giving rise to the notice provided in subsection 1.6(a) within 60 days
after the receipt of such notice, then the Company and Ameritech shall
promptly undertake good faith negotiations to resolve any such
circumstance in a manner that will not result in any material tax
liability to the Company or produce any economic loss for Ameritech.
Notwithstanding any other provision of the Articles or of any other agreement
between Ameritech and the Company, the sole and exclusive remedies of the
Company with respect to the failure of Ameritech to perform the undertakings set
forth in Section 1.2 hereof or with respect to the occurrence of an Ameritech
Ownership Event shall be the remedies set forth in this Section 1.6 (and, in
particular, the Preferred Stock or common stock in the Company owned by
Ameritech shall not be subject to the Shares-in-Trust provisions of Section 5.5
of the Articles upon the occurrence of such breach or Ameritech Ownership
Event).
2. ESTABLISHMENT OF AN EXCEPTED HOLDER LIMIT FOR AMERITECH
Based on the above representations and agreements, the Company, effective
as of the date of this Agreement, has established an Excepted Holder Limit for
Ameritech by adopting a resolution of its Board of Directors in the form
attached to this Agreement as Exhibit "A".
3. APPLICABILITY OF CHARTER PROVISIONS
3.1 Ameritech and the Company agree that, in lieu of the provisions
of paragraphs 5.3.3(a) and 5.3.3(b) of the Articles, by which
Ameritech, as an Excepted Holder, would otherwise be bound, Ameritech
will be bound by the provisions set forth in Section 1.2 and Section
1.6 above as if they were set forth in the Articles.
3.2 Ameritech and the Company agree that, in lieu of the provisions
of paragraph 5.4.2 of the Articles, by which Ameritech, as a
Beneficial Owner or Constructive Owner of Equity Stock, would
otherwise be bound, Ameritech will provide the following information
to the Company on an annual basis in accordance with this Section 3.2:
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a. No later than December 31 of each calendar year, the Company will
use commercially reasonable efforts to ascertain the equity ownership
of each of its tenants, excluding those tenants from whom the Company
(or any entity owned or controlled by the Company, in whole or in
part) derives or is expected to continue to derive a sufficiently
small amount of revenue such that, in the opinion of the management of
the Company, rent from such tenant would not adversely affect the
Company's ability to qualify as a REIT (after such exclusion, herein
referred to as the "Remaining Tenants");
b. No later than December 31 of each year, the Company will compile
a list of the Remaining Tenants whose equity ownership it has been
unable to ascertain (the "Tenant List") and will deliver the Tenant
List to Ameritech along with the Letter of Direction substantially in
the form attached hereto as Exhibit "B";
c. So long as Ameritech owns or Constructively Owns at least 10% of
the Equity Stock in the Company, no later than 60 days after the
receipt of the Tenant List and Letter of Direction from the Company,
Ameritech will complete the Letter of Direction and return it to the
Company by U.S. Certified Mail, certifying that to the best of the
knowledge of the certifying person, based on the Tenant List either
(i) Ameritech does not directly own or Constructively Own (A) any
equity interest in any Tenant that is a partnership listed on the
Tenant List or (B) 10% or more of the equity interests in any Tenant
that is a corporation listed on the Tenant List or (ii) Ameritech does
directly own or Constructively Own 10% or more of the equity interests
in a Tenant listed on the Tenant List and will provide the name of
such Tenant. As an alternative to making the certification required
herein, Ameritech will have the option to provide the Company with a
list of all partnerships in which it holds any equity interest and all
corporations in which it holds a 10% or more equity interest.
Ameritech and the Company agree that the Company's sole remedy for a
failure by Ameritech to comply with the provisions of this Section 3.2
shall be to seek injunctive or equitable relief to cause Ameritech to
deliver the documents referred to in this subsection 3.2(c).
4. MISCELLANEOUS
4.1 The Company represents and warrant that Schedule 1 sets forth a
true and complete list of the Company's Remaining Tenants.
4.2 All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Maryland, without
giving effect to any choice of law or conflict of law provision
(whether of the State of Maryland or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than
the State of Maryland.
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4.3 This Agreement may be signed by the parties in separate
counterparts, each of which when so signed and delivered shall be an
original, but all such counterparts shall together constitute one and
the same instrument.
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Each of the parties has caused this Agreement to be signed by its duly
authorized officers as of the date set forth in the introductory paragraph of
this Agreement.
The "Company" "Ameritech"
MERIDIAN INDUSTRIAL TRUST, INC., STATE STREET BANK AND TRUST
a Maryland corporation COMPANY, not invididually but solely
Trustee for Ameritech Pension Trust
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxx
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Its: Secretary Its: Vice President
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6
EXHIBIT "A"
MIT -- AMERITECH
EXCEPTED HOLDER LIMIT RESOLUTION
In accordance with Article 5 of the Company's Third Amended and Restated
Articles of Incorporation ("Articles"), the Directors hereby determine that,
effective upon the REIT Ownership Date (capitalized terms used in this
resolution that are not otherwise defined shall have the meanings given to those
terms in the Articles), and subject to adjustment as set forth below:
1. An Excepted Holder Limit of 100% of the number of outstanding shares
of Series B Convertible Preferred Stock shall apply to State Street Bank and
Trust Company, not individually but solely as Trustee (and any successor
Trustee) for Ameritech Pension Trust ("Ameritech");
2. An Excepted Holder Limit of 29% of the number of outstanding shares of
the Company's Common Stock shall apply to Ameritech (which shall include any
shares of Series B Convertible Preferred Stock owned or treated as owned due to
the convertibility of the Series B Convertible Preferred Stock); provided,
however, that in the event of a redemption, repurchase or cancellation of shares
of Common Stock or similar action on the part of the Company that results in the
number of shares of Common Stock then Beneficially or Constructively Owned by
Ameritech representing a greater percentage of the outstanding shares of Common
Stock, such Ownership Limit shall be increased proportionately;
3. As to each Person that is deemed to Beneficially Own or Constructively
Own an interest in shares of the Company that are held by Ameritech, that
Person's deemed indirect interest in the shares held by Ameritech shall be
disregarded for purposes of applying the Ownership Limit to that Person,
provided, however, if such a Person also Beneficially or Constructively Owns an
interest in other shares of the Company, the interest held through Ameritech
shall not be so disregarded; and
4. When Ameritech sells or otherwise transfers ownership of shares of the
Company outside of Ameritech, the Excepted Holder Limit then applicable to
Ameritech shall be reduced by the interest that is sold or transferred, but the
limit applicable to Ameritech shall not be reduced below the basic Ownership
Limit.
A-1
EXHIBIT B
LETTER OF DIRECTION
[DATE]
The undersigned, being a duly elected and qualified _____________ of
Ameritech Pension Trust ("Ameritech") does hereby certify as follows:
(1) The undersigned has received from Meridian Industrial Trust, Inc.,
a Maryland corporation ("MIT"), the Tenant List dated as of ___________ (the
"Most Recent Tenant List"), which has been delivered pursuant to Section 3.2(b)
of that certain Amended and Restated Excepted Holder Agreement dated September
30, 1997 by and between MIT and Ameritech (the "Excepted Holder Agreement"; all
capitalized terms used herein and not defined herein shall have the same
respective meanings as are ascribed to such terms in the Excepted Holder
Agreement).
(2) Either of the following certifications is true and correct
[**STRIKE INAPPLICABLE PARAGRAPH]:
(A) Neither Ameritech nor any of its affiliates, individually or
in the aggregate, owns or Constructively Owns 10 percent or more the Equity
Stock of MIT.
(B) I have reviewed (or have caused appropriate personnel or
agents of Ameritech to review) Ameritech's investments in each entity named as a
tenant in the Most Recent Tenant List in the manner contemplated by Section 1.2
of the Excepted Holder Agreement, and such review has not revealed (except as
specifically noted in Attachment 1 to this Certificate) any circumstances in
which Ameritech, would own or Constructively Own more than a 9.9 percent
interest in any such tenant.
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
Acknowledgment as of the date first written above.
By:
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Name:
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Title:
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